On 22 March 2017 the Copyright Amendment (Disability Access and Other Measures) Bill was introduced to the Australian Parliament. The Bill proposed to end perpetual copyright for unpublished materials resulting in millions of historical manuscripts being freed into the public domain on 1 January 2019.
But what does this actually mean for archivists and archival organisations? Jessica Coates of The Australian Libraries and Copyright Committee was generous enough to answer my questions.
Q: In short, what does the Copyright Reform Bill actually propose to change in the Australian Copyright Act?
A: There are 4 major changes proposed by the bill:
1 – the replacement of the current provisions for assisting people with a print disability with two new exceptions which will be much broader and apply to people with any disability that prevents them accessing material (eg including deafness, physical etc). The new exceptions will be a much simpler exception for institutions assisting people with a disability, and a very broad new fair dealing for providing access to people with a disability. The fair dealing in particular is a big change – it should mean just about anything can be done that is needed to provided someone with a disability proper access, as long as it is reasonable/fair.
2 – the simplification of the educational statutory licences. This doesn’t change the scope of activities permitted by the licences so much as removing a lot of the burdensome admin and bureaucracy that went along with it. The changes were jointly negotiated by the schools, unis and the Copyright Agency, which is also a pretty big deal.
These changes also introduce a new exception to allow the inclusion of material in online exams for remote students, which had previously been a gap.
3 – fixing the preservation exceptions for libraries and archives. The current exceptions are very confusing and outdated, apply differently to different materials, limit the number and format of copies made and have odd paradoxes like only allowing you to copy material after it has been lost or damaged. The new provisions are much simpler and broader, and should allow the implementation of best practice preservation policies. The one important limitation is a commercial availability test.
The provisions also remove the current limitations that prevent preservation copies from being made available onsite on anything but a dumb terminal. The institutions will now be able to make materials available on ordinary terminals on their premises, as long as they “take reasonable steps to ensure a person who accesses the preservation copy does not infringe copyright.” This is much more flexible for smaller institutions who can’t afford to have dedicated dumb terminals.
4 – changes to the copyright term provisions that will end perpetual copyright for unpublished works and provide a fixed term for works whose authors are unknown. The changes will align the copyright term for unpublished works with those of published works, meaning the standard for most works with be the life of the author plus 70 years. However, it also introduces a new term for any works – published or unpublished – whose author is not known. This includes anonymous works and orphan works where authors have been lost over time. These works will now fall into the public domain 70 years after they are published (for published works) or created (for unpublished works).
So while there will still be some risk management needed for orphan works with authors who are known but not responding, and works where it’s unclear when they were publish/created, for a good portion there will be a fairly clear date when they can be used without restriction.
It also means that on 1 January 2019 (when the new provisions come into effect) millions of works will fall into the public domain simultaneously across Australia. Very exciting.
Q: On a practical level, what would the proposed changes mean to archival organisations?
A: For archives, the 3rd and 4th are the most significant changes.
For those who have been trying to follow the existing preservation provisions (I suspect many have not) they can introduce new procedures that include steps like preservation on acquisition, across multiple formats. They’ll also be able to use the preservation copy of delicate works for clients wishing to access the material onsite much more easily and efficiently than they could previously.
The new term provisions will mean copyright barriers to digitisation and online access projects will be removed for a huge amount of manuscripts, ephemera and other works. Institutions should be able to identify “chunks” of their collections that will be in the public domain from 1 January 2019 eg any unpublished works whose authors died in 1949, or any orphan or anonymous works created before 1949. In 2020, the key date will be 1950 etc.
The second will also make a difference where archives are working to provide access to clients with a disability, significantly opening up their ability to provide access for individuals, including online and in different formats, when necessary.
Q: What is the partial solution to orphan records proposed in the Bill?
A: See the discussion of the term changes above – now many orphan works will have a fixed date when they fall into the public domain, or at least a reasonably guessable date (if the actual date of creation isn’t known).
Q: How likely is it that the bill will be ratified in its current form? What, if anything, would you like to see changed in it?
A: The Bill is almost certain to be ratified in its current form. In fact, it has now progressed through the House of Representatives and part of the way through the Senate. In the Senate it was granted non-controversial status, which will allow it to be passed almost immediately, without debate or referral to committee. It would have passed a few weeks ago, except the s18C debate took too much time on the schedule. Unfortunately, the Senate only sits for 3 days in May, when the Budget is tabled, so not much chance of making it on the schedule then. So we might have to wait for June. But once it makes it on the schedule, it should pass that same day.
I would have liked to remove the commercial availability test from the exception for institutions assisting people with a disability, and to have broadened the definition of library being used for the provisions (the definition of archives is good).
Q: What opportunities does the end of perpetual copyright present for archival organisations?
A: That’s what we all have to think about – what exciting projects can we now do with our manuscript and orphaned work collections that we haven’t previously felt confident about? I’m hoping we’ll see a lot more online collections, and some innovative access and community engagement projects coming out of them.